LLRX Book Review by Heather A. Phillips – Nation of Secrets and Presidential Secrecy and the Law

Ted Gup, Nation of Secrets: the threat to democracy and the American way of life, (Doubleday, 2007). ISBN 978-0385514750

This book is a study in the corrosive effects of secrecy upon America’s democracy. Not only in the sense of the public’s right and need to know the actions of their political leaders (though that is certainly a part of it) but also in the way that an institution in the grip of overwhelming secrecy – a system in which nearly everything is deemed a ‘secret’ – leads civil servants to devalue real secrets, enabling them to treat these secrets in a casual and cavalier manner. The author does not confine himself to criticizing the government, though. Industry, journalism, the legal profession and academia all come in for a share of his criticism. This endemic preoccupation with secrecy, Gup argues, is strangling the same values – such as security and national interests – that secrecy was intended to serve.

As I read this book, I couldn’t help but think of kudzu – the invasive, “foot-a-night vine” of the South. It was initially introduced as an aid to the environment (to prevent soil erosion) and a boon to small farmers and ranchers (it was advertised as cattle fodder). However, kudzu is such an aggressive and fast-growing plant that numerous nicknames (“mile-a-minute vine”, “the plant that ate the South”) and half-joking sayings have grown up about it. One poem recounts a Georgia saying that people must close their windows at night to keep the vines from invading the house. Another old saw has it that while cows won’t eat kudzu, kudzu might eat a cow. It is an invasive and noxious environmental and economic detriment that has caused untold amounts of damage to native species and farmland. Just as kudzu has become a pest weed that preys on the very things it was promoted to protect, Gup contends that secrecy undermines and corrodes those virtues and institutions that it is intended to defend.

And just as kudzu-control workers in the South must cut through the tenacious, rubbery vines with machetes, lest the vines strangle everything in their path, the book argues that Americans are finding themselves in an ever-expanding jungle of secrecy that threatens to suffocate the virtues on which America was founded – leaving its inhabitants to wallow in paranoid, dysfunctional absurdity.

While clearly inspired by current issues, the author goes out of his way to include historical case studies. By doing this, he not only makes his point in a thorough manner, but also pulls the teeth of any critics who might dismiss his work as the product of purely partisan motivations, therefore reinforcing the credibility of his book. Gup, an investigative journalist, is at his best when he is recounting obscure but enlightening episodes in American history. Luckily he plays to his strengths in this volume, recounting a number of illustrative vignettes and using them to prove his points.

Where Gup consciously draws upon historical examples from a number of professions and disciplines to broaden the scope of his argument, Pallito and Weaver have kept their scope deliberately narrow. This book is an examination of the tactics that the executive branch has used since the mid-twentieth century to expand and consolidate power through the control of information – actions which have eroded the balance of power and led to a constitutional dilemma.

The authors contend that endemic secrecy has not only increased executive power at the expense of the other two branches, but has become institutionalized in the executive branch to an unprecedented degree. Moreover, this institutionalized secrecy has become “a systematized means of political control” – a state of affairs that has come about in part through what the authors call “the War Model of the presidency” – a paradigm which assumes a constant threat to the nation which makes the “aggrandizement of the presidency urgently necessary”. The War Model dictates that the president must not only fight Congress and the courts, but actually subjugate the other two branches in order to assure the survival of the nation.

One of the tools of this subjugation hinges on secrecy. By keeping the rest of the government (and the citizenry) in the dark about its activities, the executive has, the authors argue, made oversight and accountability of the executive branch impossible. In discussing the executive’s power to classify information, the state secrets privilege, the FISA courts, and the “war on terror” within the context of the changing power dynamic, the authors situate recent events within a framework of institutional, historical and personal factors. By doing so, the authors shed light on the current constitutional and institutional dilemmas that the country currently faces. They argue that attempts to rein in the executive’s expansion of power should come, not from Congress, but from the courts.

Gup’s style of writing – particularly his use of anecdotes – is clear, concise and approachable. Pallito and Weaver have authored a volume that hews more closely to the style of the traditional legal monograph. However, while the writing style of the two books varies, both would be exemplary additions to any library seeking to add to national security law collections, as both would be useful volumes for anyone doing research in the area. Nation of Secrets would also be a good addition for any library seeking to add to a collection geared toward freedom of speech. Presidential Secrecy would be a good addition to a constitutional law collection, dealing, as it does, with recent developments in the balance of powers among the branches.

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